PATRIOT Games: Terrorism Law and Executive Power

JURIST Guest Columnist Susan Herman of Brooklyn Law School says that reauthorization of the USA PATRIOT Act is up for debate again in Congress just as revelations about the NSA domestic surveillance program remind us why executive power needs to be kept in check...

The acronym USA PATRIOT turns out to be an apt name for the anti-terrorism legislation passed in October 2001: the Act has become a crucible for intense debate about what it means to be a patriot  i.e., how to protect and defend the Constitution in a time of turmoil.

Critics of the Act initially focused on the question of whether the Patriot Act sacrificed constitutional protections of liberty and privacy. In a 2001 JURIST Forum essay, I argued that the real problem with the Patriot Act was its impact on the checks and balances among the branches of the federal government (The USA Patriot Act and the USA Department of Justice: Losing Our Balances?, JURIST, Dec. 4, 2001). In a number of ways, the Act increased executive authority at the expense of judicial second opinions about when searches and seizures are reasonable. As is so often the case, what may appear to be questions about rights are, at bottom, questions about constitutional structures and powers. Who are the patriots who get to decide how we should be striking the balance between the liberty we expect and the security we desire? Is it the President alone, Congress, or some combination of the three branches of the federal government, including the courts?

By creating a bicameral legislature, the Constitution created two different legislative voices. The House of Representatives is elected frequently, mirroring state population, and is expected to be close to the people. The Senate is more stable, equally divided among the states no matter what their population, and expected to be more deliberative because of its insulation from popular opinion. During the sunset debates, the House, true to its stereotype, was wildly partisan and raucous. At the end of July, the House passed a bill called the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, which lifted the sunsets from almost all of the controversial provisions and provided for only small amendments of a few provisions (like modifying the gag order on the custodians of records far enough to allow those individuals to consult counsel or go to court to challenge a demand for records). Some of the changes proposed, like the limit on the so-called "sneak and peek" authority sponsored by Republican Butch Otter of Idaho and the bill to protect library records endorsed by Independent Bernie Sanders of Vermont, had previously garnered the support of a majority of the House. During the sunset debates, the House leadership used every partisan procedural maneuver at its disposal to prevent amendments like these from reaching a vote on the floor. Votes on what did reach the floor split the House down the middle. (A motion to recommit the bill to committee to reconsider some of the sunset provisions, for example, lost by a vote of 209 to 218.)

The Senate showed greater decorum, taking the high, bipartisan road. On the same day the House passed its divisive bill, the Senate Judiciary Committee hashed out a compromise bill that included some amendments  more than the House bill; fewer than critics would have preferred. In contrast to the House bill, the Senate bill was called the USA PATRIOT Improvement and Reauthorization Act of 2005. Evidently recognizing that it was likely to split just as evenly and noisily as the House if they debated the bill, the full Senate then adopted the committee's bipartisan proposal by unanimous consent. As its title suggests, the bill provided for more amendments than the House bill, and a few longer sunsets.

It was not until the end of November that a draft conference report reconciled the two bills, which differed only on a handful of provisions. The differences, like whether the so-called "library provision" should be amended to allow a court to consider whether there is a basis for requiring a custodian to turn over records instead of allowing the government officials seeking records to decide for themselves whether information obtained might be "relevant" to a terrorism investigation, were narrow but of some significance. It remains to be seen whether the Patriot Act will survive in a version closer to that proposed by the House or by the Senate. But it does seem clear that the Patriot Act will survive: the House and Senate each had decided to extend and make permanent the great bulk of the Patriot Act provisions.

And then the New York Times broke the news that the administration had been helping itself to surveillance powers beyond anything contemplated by the Patriot Act. This revelation led to a series of peculiar instances of individual legislators wielding the powers of Congress. The President had quietly notified some selected legislators about his National Security Agency program, perhaps hoping to deflect criticism for ignoring legislation that limited his surveillance powers, even though these individual conversations could not function as congressional approval. After the program and this selective notification process were made public, individual legislators then explained their acquiescence or objections in interviews with the press instead of in the Congressional Record. California Democrat Nancy Pelosi said that she had written a letter objecting to the program, but could not share the letter with her constituents unless the administration whose actions she was criticizing declassified it.

A minority group of Senators took the gloves off and filibustered to prevent the enactment of a Patriot Act renewal bill until further debate. Before the New York Times story, the President and Republican congressional leaders had opposed the idea of a three month extension of the Act to allow the reconciliation process to play out; on December 21, after the story, the Senate voted to extend the Patriot Act for six months to allow further debate. This arrangement was single handedly derailed by Representative James Sensenbrenner. (Evidently approval would have had to be unanimous in the House.) A counterproposal for a five week extension was single handedly approved by Senator John Warner, evidently the only Senator who had not yet taken off to celebrate the holidays.

So Congress enters the New Year with questions about whether to amend or sunset Patriot Act provisions unresolved. But more members of Congress may now be resolved to play their constitutional function of checking the Executive Branch instead of simply writing it a blank check allowing government surveillance. The Executive Branch has amply demonstrated why some check is needed. The administration has used its Patriot Act powers to the hilt, employing over 30,000 National Security Letters (which demand records without any court order) and increasing the pace of applications to the Foreign Intelligence Surveillance Court. But even that was not enough. Whether the President also has inherent constitutional authority to conduct surveillance beyond what Congress has authorized is a question that will be debated in Congress and in the press.

But where are the courts? If the subject of current debate is the extent of the President's inherent Article II authority, might it not be time for another judicial decision like the Steel Seizure Case or United States v. United States District Court identifying the boundaries of Article II? It is notable that so few of the Patriot Act surveillance provisions have been the subject of litigation. This is because the targets of the information the government seeks to obtain do not know that they are targets, and the custodians who are asked for information are under a gag order prohibiting them from telling anyone. With all the secrecy surrounding the government's surveillance activities, those who would have standing to challenge government actions don't know it. The administration has resisted releasing even the most skeletal numerical information about how it has used its Patriot Act powers. The courts considering Freedom of Information Act claims brought by the ACLU and other groups have yielded mixed results, sometimes ordering the government to release some rudimentary information, and sometimes accepting the government's claim that even statistical information about surveillance should be exempt for national security reasons. It is difficult to think of anyone who would have standing to challenge the President's recently revealed surveillance program in court, unless and until the government decides to use information obtained as evidence in a criminal prosecution. In other words, decisions about whether the legality of the executive branch use of its powers will be litigated, like the use of those powers and the flow of information about the use of those powers, are within the control of the executive branch.

This is a dangerous lack of balance. The President is determined to take any actions he deems necessary, in his own unilateral judgment, to protect us from terrorist attacks. His oath, however, is to "preserve, protect and defend the Constitution." Congress has been distressingly passive; the courts remarkably uninvolved. So we the people have to be the patriots. None of our constitutional structures can work in the absence of political accountability, which requires an informed and active constituency. The Patriot Act debates show that we can influence our representatives through our actions as well as our votes. Bill of Rights Defense Committee resolutions expressing concern about various aspects of the Patriot Act have been enacted by seven states and about 400 cities, towns and villages. The sections of the Patriot Act the public has found most troubling (albeit sometimes on the basis of misinformation), like the "sneak and peek" and "library" provisions, are the very provisions Congress has considered amending. If we want to preserve our Constitution, which contemplates an Executive Branch operating as one of three coequal branches, we have to follow through on those resolutions, insisting that Congress take a more active role in checking the executive branch, and that the courts be afforded a proper role in evaluating the balance of legislative and executive power. The decisions we confront are difficult and require the balance and wisdom of all three branches as well as the attention of an informed public.

Instead of talking about recent legislation in which Congress is considering narrowing the role of the courts even further (the Graham-Levin amendment, which is a frightening and terrible mistake in my view), I will end on a more personal note. I have been writing about the Patriot Act in a rather lengthy law review article ("The USA PATRIOT Act and the Submajoritarian Fourth Amendment") scheduled to appear in the Harvard Civil Rights Civil Liberties Law Review in January. My article was accepted in the spring, and thus had to be rewritten after the summer sunset debates, and then reedited after the November draft conference report, as the content of the Act was a moving target. Along with everyone else, I had expected that the Patriot Act legislation would be settled by the end of the year, whatever its content. Instead, my article is going to press before the legislative process is complete. This is frustrating and might even qualify as living an academic nightmare. But if all this legislative activity means that Congress is in the process of waking up, I am certainly enough of a patriot to be glad.

Susan Herman is Centennial Professor of Law at Brooklyn Law School and General Counsel of the American Civil Liberties Union
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